IN May 2008, the International Court of Justice (ICJ) in the Hague, the Netherlands, had concluded that sovereignty over Pedra Branca/Pulau Batu Puteh belonged to Singapore after considering all the evidence submitted by Malaysia and Singapore.
The ICJ issued its judgment in the following terms:
(By 12 votes to four) sovereignty over Pedra Branca/Pulau Batu Puteh belongs to the Republic of Singapore;
(By 15 votes to one) sovereignty over Middle Rocks belongs to Malaysia; and,
(By 15 votes to one) sovereignty over South Ledge belongs to the state in the territorial waters of which it is located.
In a press release, the ICJ explained that the territorial domain of the Sultanate of Johor covered in principle all the islands and islets within the Straits of Singapore, and this included Pedra Branca/Pulau Batu Puteh.
It also said the fact of possession of the island by the Johor Sultanate “was never challenged”, therefore, the court held that the Sultanate of Johor had the original title to Pedra Branca/Pulau Batu Puteh.
This ancient title is further confirmed by the sultan of Johor’s authority exercised over the Orang Laut, who inhabited the islands in the Straits of Singapore and made this maritime area their habitat.
The court had also examined a letter written on June 12,1953,by the colonial secretary of Singapore to the British adviser to the sultan of Johor, asking for information on the status of Pedra Branca/Pulau Batu Puteh in the context of determining the boundaries of the “Colony’s territorial waters”.
In his reply of Sept 21, 1953, the acting state secretary of Johor stated that the “Johore Government (did) not claim ownership” of the island.
Hence, the court found that Johor’s reply showed that, as of 1953, Johor understood that it did not have sovereignty over Pedra Branca/Pulau Batu Puteh.
After the ICJ verdict was handed down, Malaysia and Singapore established a Joint Technical Committee to de-limit the boundary around Pulau Batu Puteh and Middle Rocks, and to determine the ownership of South Ledge. Thereafter, life moved on and the case was forgotten, until it surfaced again recently.
On Feb 3, Malaysia applied to the ICJ for the revision of the 2008 judgment.
The application was made on the basis of three documents it had obtained from the United Kingdom’s National Archives between August last year and January.
The documents comprised an internal correspondence of Singapore’s colonial government in 1958; an incident report submitted by a British naval officer in the same year; and a 1960s map of naval operations bearing annotations.
These documents indicated that “officials at the highest levels in the British colonial and Singaporean administration” did not regard Pedra Branca/Pulau Batu Puteh as part of Singapore’s sovereign territory during the relevant period.
On Feb 5, Singapore Law and Home Affairs Minister K. Shanmugam reportedly said that on a cursory examination of the documents, they would not make any difference to the ICJ’s judgment.
Although Article 60 of the ICJ Statute states that the court’s judgment is final and without appeal, however, Article 61 Clause 1 provided room for revision.
The revision is allowed upon “the discovery of some fact of such a nature as to be a decisive factor, which fact, when the judgment was given, was unknown to the court and also to the party claiming revision, provided that such ignorance was not due to negligence”. The application for revision must be made not later than six months of the discovery of the new fact (Clause 4) and that no application for revision may be made after a lapse of 10 years from the date of the judgment (Clause 5).
Applications for revision of ICJ judgments had been made in the past, such as the application for revision of the continental shelf dispute between Tunisia and Libya (ICJ judgment Feb 24, 1982); the Genocide Convention between Bosnia/Herzegovina and Yugoslavia (judgment July 11, 1996); and the land/maritime frontier dispute between El Salvador and Honduras (judgment Sept 11, 1992).
There is no guarantee that an application for revision can be admitted by the court, and if admitted, there is no guarantee that it will succeed.
For example, in the case of the Genocide Convention — the court had declared that it had the jurisdiction to hear the case filed by Bosnia and Herzegovina.
Yugoslavia applied for the revision in April 2001 and argued that a revision was necessary since its access to the United Nations (in November 2000) revealed new facts which were not known in 1996. On Feb 3, 2003, the court held that Yugoslavia’s application was inadmissible.
For Malaysia to win the Pulau Batu Putih case this time around, it must first convince the new panel of ICJ judges that the newly-discovered facts are admissible and should be considered by the court, and convince them that with the new evidence, a different verdict should be handed down favouring Malaysia.
Salleh Buang formerly served the Attorney-General’s Chambers before he left for private practice, the corporate sector, and then, the academia